New Paid Parental Leave Law During Covid-19 Crisis

The Emergency Family and Medical Leave Expansion Act (EFMLEA) made striking changes to the Family and Medical Leave Act (FMLA).  This article provides guidance on how to understand the new law, and how to comply with it.

The Act creates a new category of FMLA-protected leave (we will call it “Covid-19 Leave”) for parental leave. The category of leave only applies to leave for a “qualifying need related to a public health emergency” that arises from March 18 to December 31, 2020. The statute explains what this really means:

“The term ‘qualifying need related to a public health emergency’, with respect to leave, means the employee is unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to a public health emergency.”

With schools closing across the nation, this means that anyone with children under 18 could be eligible for this sort of leave. To be clear: Covid-19 Leave is for parents who have to care for their children because the children are at home. If the employee gets sick from Covid-19 then the employee is covered under the more traditional elements of FMLA (which do not apply to ASA’s smallest members). A perverse aspect of this law is that if an employee who has only worked for the business for 6 months stays home to care for healthy children then the employee is covered under FMLA and but if the same employee who has only worked for the business for 6 months stays home because he or she has Covid-19 then the employee is NOT covered under FMLA.

Most of ASA’s members are small businesses that haven’t had to comply with FMLA in the past because it excluded businesses with fewer than 50 employee.  The new law includes those smaller businesses, so this will be new territory for many ASA members.

Paid or Unpaid Leave?

This is the key issue for most businesses. During the Covid-19 crisis, cash flow for aviation businesses is practically non-existent (and expenses continue, unabated).  The length of the crisis is still unclear, but most people expect it to continue for months (at least). There will likely be few, if any, child-care options even through the summer, so parents could be unable to work for many months.

Typically, FMLA leave has been unpaid (this has been, of course, altered by the Emergency Paid Sick Leave Act which is covered in a different ASA blog post). The main benefit is that the employee gets his or her job back after the FMLA event without a loss of seniority, without a loss of benefits, and with no change in terms and conditions of employment. The employer cannot terminate an employee because the employee took FMLA leave.  But the new law changes this traditional model.

The new law provides that Covid-19 Leave is unpaid for the first ten days of leave (two weeks for employees who normally work five days a week). But after those two weeks, the leave is paid leave! The pay must be at least two thirds of the employee’s regular rate of pay, and it must be paid for the number of hours the employee would normally be scheduled to work. There are also rules for calculating hours for employees with varying schedules.
There are upper limits. The maximum daily pay under this law is $200 per day and the maximum total pay is $10,000 in the aggregate. So if you are paying someone $200 per day under this law, then you would be obliged to pay up to 50 work days (a total of $10,000), or about seven weeks.

Of course, a company can always choose to pay more than the amounts in the law.  If you find yourself needing to provide Covid-19 Leave then please be sure to look at the law or get appropriate legal advice because there are additional details in the law that may apply to your specific fact pattern!

This pay should be provided according to the normal schedules for pay.

Employee Eligibility for Covid-19 Leave

Employees typically become eligible for FMLA leave after working for 12 months for an employer, and working at least 1250 hours during the previous 12-month period. Employees become eligible for the special Covid-19 Leave under FMLA after only working for 30 days (so your newer employees will be eligible for Covid-19 Leave, to care for their children, even though they are not yet eligible for other forms of FMLA protection).

Employees are required to provide the notice that is “practicable” to their employer.  So employees, please make sure you provide your employer with some communication about your intent to take this leave, even if it is just an email.

Employee Obligation for Covid-19 Leave

Typically FMLA applies to a business that employs 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year. The way this is worded, an aviation business that has just gone from 60 employees to 6 employees because of the current crisis likely remains liable for FMLA through at least the end of this year (on the assumption that they had 60+ employees in 20+ weeks last year, but will not meet that threshold this year).

Covid-19 Leave, on the other hand, applies to employers with fewer than 500 employees. So the largest companies are exempt from Covid-19, and it will instead only apply to small and medium-sized businesses.
The Secretary of Labor is authorized to issue regulations to exempt certain businesses, “when the imposition of such requirements would jeopardize the viability of the business as a going concern.” But no such regulation has yet been issued.

For employers who have fewer than 25 employees (“Very Small Employers”), there are complicated exemption rules. In summary, a Very Small Employer is not liable for Covid-19 Leave if the employee’s job disappears due to economic conditions, including those caused by the public health emergency. But the business must make reasonable efforts to restore the employee to a position equivalent to the position the employee held when the leave commenced (so if you reduce aviation parts sales positions, but open up positions selling surgical masks, then you need to restore the employee to one of those new positions if possible upon the employee’s return). Equivalent, in this case, means a job with equivalent employment benefits, pay, and other terms and conditions of employment. The business cannot restore the employee to a position, then for about a year after the end of the public health crisis, the employer needs to offer any new or open (equivalent) positions to the protected employee.

This special rule for Very Small Businesses, unfortunately, incentivizes Very Small Businesses to avoid growth after the public health crisis is over. Such Very Small Businesses in our industry may not have the cash to maintain employees who are not working during an extended crisis. So they will have to eliminate the jobs in order to avoid $10,000 in liability for Covid-19 Leave under the new rules. There is a strong likelihood that aviation supply chain businesses will continue to suffer for a long time after the public health crisis is over. Businesses will likely want to bring back employees, but likely will not be able to offer the same benefits, pay, and other terms and conditions of employment due to the typical extended effect of an aviation slow-down. This will create a legally complicated situation because of the obligation to offer equivalent employment upon the employee’s return.

Notice to Employees

FMLA already requires employers to post a notice to employees of the terms for FMLA.  If you were not subject to FMLA before the new changes then you might not have had an obligation to post this notice because you were not an “employer” as that term is defined in FMLA.  If the change in the law now makes you meet the definition of an “employer” under FMLA (and all aviation small businesses with fewer than 500 employees should now be “employers” under the law) then you will have a new notice obligation that requires you post details about FMLA.  Notice details can be found at 29 U.S.C. 2619.  You can download the Department of Labor poster, which is the approved form of the notice.

It is unclear whether the existing FMLA notice requirements will be interpreted to require that the amendments be subject to an additional notice to the employees.  The Department of Labor may publish guidance explaining whether employer notice obligations change under this new law, or they may simply change the approved poster; until such changes are made, though, the Department of Labor poster should be adequate for compliance.

What Can We Do to Support Compliance?

The ASA members with whom we’ve spoken are trying their best to support employees while also preserving a business without cash-flow for the foreseeable future. Expenses like rent or mortgage aren’t going away for most businesses. ASA members would like to pay employees through the entire public health crisis but many of them know that they just won’t have the money.

ASA members should be planning their finances with Covid-19 Leave in mind.

ASA has already asked Congress to assist the aviation supply chain with low-interest loans, payroll grants, and other incentives to keep aviation strong. We’ve also encouraged the members to tell Congress their own stories (for resources to help tell your story, see this blog post). If Congress provides this sort of support, it will help ensure that ASA members can continue to support their employees in this time of need.

About Jason Dickstein
Mr. Dickstein is the President of the Washington Aviation Group, a Washington, DC-based aviation law firm. Since 1992, he has represented aviation trade associations and businesses that include aircraft and aircraft parts manufacturers, distributors, and repair stations, as well as both commercial and private operators. Blog content published by Mr. Dickstein is not legal advice; and may not reflect all possible fact patterns. Readers should exercise care when applying information from blog articles to their own fact patterns.

2 Responses to New Paid Parental Leave Law During Covid-19 Crisis

  1. Pingback: New Law Requires Paid Sick Leave During Covid-19 Crisis | ASA Web Log

  2. Pingback: New Sick Leave and Parental Leave Guidance | ASA Web Log

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